FT MERDE 

GenCol1 


Popular Election 

of 

United States Senators 

by 

Legislative Construction of the 
Federal Constitution. 

Perpetuation of the Eedcrai and Republican 
Principles of the Constitution. 


By SAMUEL RUSSELL. 

n 

“Congress ought not to interpose in the regulation of the times, 
places and manner of holding elections for Senators and Representa¬ 
tives except only in such cases in which the legislatures of the respec¬ 
tive states or any of them may neglect, refuse, or be unable to make 
provision, or for the purpose of appointing a uniform time for the elec¬ 
tion of Representations .”—Alexander Hamilton. 

The controversy respecting the election of United States senators 
by the people involves two principles which should be adjusted and 
given equal weight in the settlement of this question. The right of 
election by the people is an inherent principle of republican institu¬ 
tions. The right of the states to elect their senators is a principle 
essential to the federal character of the United States and to the dig¬ 
nity and equality of the states in the federal system. 

Limitations on the Right of Amendment. 

The question as to whether or not a proposed amendment to the 
Constitution shall be submitted to the States, is one of policy for Con¬ 
gress to decide: 

“Article V. The Congress, whenever two-thirds of both Houses 
deem it necessary, shall propose Amendments to this Constitution; 
* * * Provided that no State without its Consent shall be deprived 

of its equal Suffrage in the Senate.” 

The right of amendment, however, is limited by the proviso that 
no state without its consent, shall by any amendment be deprived of 
its equal suffrage in the senate. What is meant by state is a body 
politic exercising independent functions of government, a constituent 
unit of the United States of America and having equal suffrage with 
the other members of the Union in the federal senate. This suffrage 
is not vested in the people inhabitating the state, but rather in the 
state as an independent political corporation. An amendment which 
vests the election of senators directly in the people, divests the states 
as such of their suffrage in the federal senate and would appear to be 
invalid as against any state not expressly consenting thereto. 

The proposed constitutional amendment for the election of United 





2 




States senators now pending before the legislatures of the several’ states, 
is open to this objection: If the amendment be ratified, the Senators 
will not be elected by the States but rather from Senatorial districts 
coterminous in territory with the States, the Senators will be separated 
from all political relation to the state governments and the States as 
bodies politic will not be represented in either House of Congress. 
The text of the proposed amendment is as follows: 


oef’T 


“The senate of the United States shall be composed of two sena¬ 
tors from each state, elected by the people thereof for six years and 
each senator shall have one vote. The electors in each state shall have 
the qualifications requisite for electors of the most numerous branch 
of the state legislature.” 

The legal and political effect of the proposed amendment is thus 
aptly stated by Henry Cabot Lodge, senator from Massachusetts: 

“Reduced to its simplest form, an amendment providing for the 
choice of senators by direct, popular election is merely a proposition 
to convert the senate into a second house of representatives with two 
congressmen at large from each state who are to be called senators 
and who are to hold office for six years.” 

This proposed assimilation of the senate to a second house of rep¬ 
resentatives having a direct popular constituency is clearly manifested 
by a comparison of the text of the proposed amendment with the pro¬ 
visions of the Constitution which relate to election of representatives 
in Congress: 

“Article 1. Section 2: The House of Representatives shall be 
composed of Members chosen every second Year by the People of the 
several States and the Electors in each State shall have the Qualifica¬ 
tions requisite for Electors of the most numerous Branch of the State 
Legislature.” 

Federal Character of the Senate. 

Under the old Constitution the House of Representatives is a 
national body and the Senate a federal body. The nationalization of 
the senate will effectively destroy the federal character of the United 
States contrary to the intent of the founders of the independence and 
political constitution of our country. 

Before the consummation of such a plan it would be well for the 
American people to pause and reflect upon the words of Abraham Lin 
coin upon this subject. Writing to Josephus Hewett from Washing¬ 
ton, Feb. 13, 1848, he said: 

“I was once of your opinion expressed in your letter, that presi¬ 
dential electors should be dispensed with, but a more thorough knowl¬ 
edge of the causes that first introduced them has made me doubt. The 
causes are briefly these: The convention that framed the Constitution 
had this difficulty: the small states wished to so form the new govern¬ 
ment as that they might be equal to the large ones, regardless of the 
inequality of population; the large ones insisted on equality in propor¬ 
tion to population. They compromised it by basing the house of rep¬ 
resentatives on population, and the senate on states regardless of popu¬ 
lation, and the execution of both principles by electors in each state, 
equal in number to her senators and representatives. Now throw 
away the machinery of electors and this compromise is broken up and 
the whole yielded to the principle of the larger states.” 

Apportionment by Population. 

In a constituent assembly directly representative of the people the 
only equitable manner to apportion representation among territorial 


D. OF D. 
WAP 20 ’915! 


3 

districts is in proportion to an enumeration of the people respectively 
inhabiting the same. This' rule of apportionment is applied to the 
house of representatives by the Constitution: 

“Article I. Section 3: Representatives and direct Taxes shall be 
apportioned among the several States which may be included within 
this Union according to their respective Numbers. * * * * The 
actual Enumeration shall be made within three Years after the first 
Meeting of the Congress of the United States, and within every sub¬ 
sequent Term of ten years, in such Manner as they shall by Law 
direct.” . 

Now in a senate directly representative of the people it would be 
a manifest inequality to invest 81,000 people inhabiting Nevada with 
the right to elect two senators and to invest the 9,100,000 people in¬ 
habiting New York with the right to elect but two senators. The 
disparity of such an apportionment as among the people inhabiting the 
several states is exemplified by the return of the population of the 
following states as made by the federal census of 1910: 


South Carolina . 

Wyoming. 

Kentucky . 

Delaware . 

Georgia . 

Arizona . 

Missouri . 

Idaho . 

Massachusetts . . 

Vermont. 

Ohio . 

New Hampshire 

Illinois . 

Rhode Island . . 
Pennsylvania . . . 
Florida . 


1,500,000 

145,000 

, 2 , 200,000 

202,000 

2,600,000 

204,000 

3,200,000 

325,000 

3,300,000 

355,000 

4,700,000 

430,000 

5,600,000 

542,000 

7,600,000 

750,000 


Already, it has been proposed by some of those who would reform 
the fundamental law that there should be one senator for each million 
of population, and there will be a persistent movement in this direc¬ 
tion, if once the right to suffrage in the senate is transferred from the 
states to the people. 


Congress Under the Articles of Confederation. 

The continental Congress which declared the independence of the 
American states was truly a Congress of states. This Congress form¬ 
ulated the articles of confederation and perpetual union between the 
states. The federal senate had its genesis in this Congress of equal 
states. 

Under these articles, the Congress was constituted as follows: 

“Article V. For the more convenient management of the general 
interests of the United States, delegates shall be annually appointed in 
such manner as the legislature of each state shall direct to meet in 
Congress. * * * In determining questions in the United States in 
Congress assembled, each State shall have one vote.” 

Delegates in this Congress were uniformly elected by the several 
state legislatures but it will be observed that the states were to appoint 
the delegates in such manner as their several legislatures should direct, 
under which provision the legislatures had the power to direct an elec¬ 
tion by electors from among the people of their prospective states. 


















4 


Succession of the Present Constitution. 

The articles of confederation of 1777 were succeeded by the Con¬ 
stitution reported to Congress by the federal convention of 1787. The 
provisions of the articles relative to the election of delegates to the 
Congress were embodied in the new Constitution with reference to 
the election of electors for the president ©f the United States. The 
language of the Constitution upon this point follows: 

“Article II. Section 2. Each state shall appoint in such Manner 
as the Legislature thereof may direct, a Number of Electors, equal to 
the whole Number of Senators and Representatives to which the State 
may be entitled in the Congress * * *” 

In all the states at the present time the people select the presi¬ 
dential electors and under the custom which has grown up effectively 
determine the votes of their respective states for president and vice 
president. This elective franchise in the people, however, is not de¬ 
rived from the Constitution but has its source in an act of the legisla¬ 
ture in each separate state. Indeed, for many years in the earlier 
period of our constitutional history, presidential electors were ap¬ 
pointed by the legislatures. This practice obtained in South Carolina 
as late as the presidential election of 1860. As shown by the actual 
operation of the electoral machinery there can be no question of the 
right of the legislature in each state to directly appoint the electors 
or direct an election by the people or by electors from among the 
people, as the legislature may in its political discretion by law deter¬ 
mine. And it is necessary that it should be thus, in order to secure 
the representation of the states as such in the electoral college. 

Now with respect to the representation of the states in the federal 
senate, however desirable it may be that the senators be elected by the 
people it would abrogate the federal character of the senate and depre¬ 
ciate the equality and dignity of the states therein, if the Constitution 
should be so amended as to vest the right of election directly in the 
people. The executive of each state, though formerly in Virginia and 
other states elected by the legislature, is now elected by the people, 
yet if the Constitution of the United States should prescribe that the 
executive authority in each state should be vested in a governor who 
should be elected by the people thereof, the states by such act would 
be subordinated to provinces of a national government. 

State Representation in the Continental Congress. 

At the time the Constitution was formulated it was the custom 
of the states for the several legislatures to appoint the delegates to 
the Congress. However, as noted above, it was the right of each leg¬ 
islature to determine for itself whether it would appoint delegates to 
Congress or direct an election by the people. It is not to be assumed 
in view of both the law and the fact with respect to this practice, that 
the framers of the Constitution intended to give the state legislatures 
any less power with respect to the election of senators than with 
respect to the appointment of presidential electors, at least there is no 
political or other essential reason why they should have done so. The 
essential thing was to have vested the right of election in each state 
to be exercised by its legislature or by such electors as it should 
designate. The provisions of the Constitution were not intended as 
limitations upon the power of the state legislatures to determine the 
manner of electing senators. The question of the election of Senators 
by the people is emphatically a question of state policy, and it is essen¬ 
tial to the federal character of the senate and the equal suffrage of the 
states therein, that if there be an election of the senators by the people 


5 

it shall be by independent direction of the legislatures in the separate 
states. 


Power of State Legislatures. 

The question arises as to the power of the state legislatures over 
this subject, particularly as to any constitutional limitations against a 
legislative reference of the election to the general electors of the state. 
Ihe provisions of the federal Constitution which relate to the election 
of senators are as follows: 

“Article I. Section 3. The Senate of the United States shall be 
composed of two Senators from each State chosen by the Legislature 
thereof for six Years and each Senator shall have one Vote. 

“Article I. Section 4. The Times, Places and Manner of holding 
Elections for Senators and Representatives shall be prescribed in each 
State by the Legislature thereof, but the Congress may at any time by 
Law make or alter such Regulations except as to the place of choosing 
Senators. 

“Article I. Section 5. Each House shall be the Judge of the 
Elections, Returns, and Qualifications of its own Members.” 

It will be noted that the Constitution gives the states as such 
equal suffrage in the senate, there are two senators from each state; 
that the legislature of each state shall choose the senators and pre¬ 
scribe the time, places and manner of holding elections. The senate is 
made the judge of the elections, returns and qualifications of the sen¬ 
ators. Questions relating to the construction of these clauses are 
questions of political administration for the senate to determine; they 
are not questions of law or equity which by possibility may be brought 
to the supreme court for adjudication. 

It would be indeed difficult to distinguish between the legal extent 
of legislative power to appoint presidential electors in such a manner 
as the legislature may direct and the legislative power to choose sen¬ 
ators and to prescribe the times, places and manner of electing sena¬ 
tors in a particular state. Of course it may be answered that the leg¬ 
islative function of choosing senators may not be delegated, that the 
power and duty is in law non-delegable which as a principle applies 
particularly to legislative powers, but a reference by the legislature of 
questions respecting the enactment of statutes or the decision of other 
political questions to the general electors of a state has never been 
regarded as a delegation of legislative power. Such a reference is 
quite the same as the act of an agent in referring a doubtful point to 
his principal for determination. The people are not the creatures of 
the legislature, the legislature is rather a creature of the people, con¬ 
stituted by them to be the organ of their collective will. If the legis¬ 
lature of a particular state may direct a popular election of presidential 
electors, why may not it direct a popular election of the senators? 
Indeed it is politically more important that the power of a state to 
designate the electors of its senators be if anything less subject to 
limitation than its power to designate its representatives in the elec¬ 
toral college, for the senate is constituted upon the suffrage of states 
whereas the electoral college is rather founded upon a combination of 
both popular and state equality. 

Construction of the Constitution. 

Now if a state legislature should pass an act directing that the 
senator from such state be chosen by the general electors of the state 
as provided by law, and should direct that the governor certify the act 
and the returns of the election to the senate as and for the credentials 
of the senator from such state, could it be said in advance that the 


6 


senate as the judge of the returns and election of its members would 
refuse to accord to these credentials the effect intended by the legisla¬ 
ture having the right to elect the senator? To reject such credentials 
would be to deprive the state of its suffrage in the senate without its 
consent. There are those who will say that to refer the election to 
the people would require a somewhat forced construction of these 
clauses of the Constitution, but such a construction certainly does not 
violate any sound legal or political principle, nor deprive any state or 
person of any political right or of any liberty or property recognized 
by the bill of rights or within the protection of the Constitution. If a 
state desires to proceed in this mode, and it is a fair inference that 
most of the states do, it is a matter quite wholly between that par¬ 
ticular state and the senate. Neither the senate nor Congress may 
require the states to provide for popular election of senators, but if a 
state or a number of states, by their legislatures, desire to provide for 
popular election, the senate has only to let them do so and the way is 
open to an effectual modus operandi to accomplish the desired result 
with full recognition of the rights of the states as such to their suf¬ 
frage in the federal senate, and without amendment of the Constitution 
or doing violence to any of its essential principles. The state is con¬ 
cerned as to the manner of electing its senators particularly as to what 
electors shall choose them, but Congress is rather concerned only that 
the senators be elected at stated times. The legislative powers of 
Congress and of the states are adequate to bring about this result with 
full protection to the privileges and rights of all parties concerned. 
The provisions of the Constitution on this as on other points have 
been so adjusted, that they are not susceptible of amendment' without 
disturbing the balance of its provisions, whereas by legislative con¬ 
struction to which the states would freely consent no such disturbance 
would result. Even if the amendment should expressly provide that 
the senate should be composed of two senators from each state chosen 
in such manner as the legislature thereof shall direct, there is the 
present clause which already provides that the manner of holding elec¬ 
tions of senators shall be prescribed in each state by the legislature 
thereof, and the presence of- these two clauses would open a field for 
unprofitable discussion and controversy. 

Argument Against Legislative Reference. 

The argument against a legislative direction for the election of 
senators by popular electors is thus stated by George Sutherland, Sen¬ 
ator from Utah: 

“I have read with great interest the argument in favor of the power 
to bring about this reform without the necessity of an amendment to 
the Constitution. You put the matter with much force and plausi¬ 
bility, but I do not find myself able to agree with you. * * * * 

As I understand it, the legislature in performing this function is 
not the agent of the people of the state, but is the agent of the 
people of the United States who framed the Constitution. * * * It 

seems to me that the argument fails in not recognizing that in this 
particular matter, the principal is not the people of the state, but the 
people of the United States.” 

Of course this comes right back to the old controversy as to 
whether the Constitution was ordained by the people of the states as 
such, or by the whole American people; however that may be, certainly 
the state legislatures are the agents of the people of the states and do 
not derive their powers from the Constitution of the United States, nor 
from the people of the United States. The Constitution recognizes 
the right of the state to representation in the senate. Vacancies occur¬ 
ring in that body during the recess of the legislature may be filled by 


7 

appointment of the executive of the state until the next meeting of the 
legislature. Vacancies occurring in the house of representatives may 
not in any event be filled by appointment of the governor or legislat¬ 
ure, but only by election of the people in whom the right is vested. 
The people may not delegate this elective franchise, but the state may 
choose senators by its legislature and in certain contingencies this 
power is shifted to the executive of the state, and there is no express 
prohibition of the power of the legislature to direct an election by the 
people who have constituted the legislature to exercise the political 
functions of the state which the people have erected. Such a direction 
or reference does not in any true sense, constitute a delegation of 
power. 


Repeal the Act of Congress of July 5, 1866. 

The act of July 5, 1866, in so far as it affects the election of sen¬ 
ators should be repealed, and thus permit the separate states to freely 
exercise their full constitutional power to determine the manner of 
electing the senators as the legislature of each state m^y provide. 

This would be in full accord with the policy outlined by Alexander 
Hamilton in the draft he prepared for the ratification of the federal 
constitution by the convention of New York in 1788. 

“Congress ought not to interpose in the regulation of the times, 
places and manner of holding elections for Senators and Representa¬ 
tives, except only in such cases in which the legislatures of the respec¬ 
tive states or any of them may neglect, refuse, or be unable to make 
provision, or for the purpose of appointing a uniform time for the 
election of Representatives.” (Hamilton’s works, Vol. II, page 79.) 

This was also the political view taken by Palatiah Webster in his 
notable “Dissertation on the Political Union and Constitution of the 
United States of North America,” published at Philadelphia in 1783. 
Speaking of the congress to be formed under the constitution, Mr. 
Webster said: 

“The delegates who are to form that august body, which are to 
hold and exercise the supreme authority, ought to be appointed by the 
states in any manner they please, in which they should not be limited 
by any restrictions.” 


Advisory Vote on Senators. 

The senate at the present may not be resolved to construe these 
clauses of the Constitution as indicated, but some day the Senate may 
take the view and then a precedent would settle this question for all 
time. Whether the separate legislatures may or may not direct an 
election by the people, it is a simple matter for any legislature to take 
the advice of the people as to the choice of the State for its Senators. 
This as analogous to a chancellor taking the advice of a jury on a 
question of fact. The right of the people to elect would be recognized 
and the right of the State as a body politic to its suffrage in the Senate 
would be formally retained in the act of ratification by the legislature 
of the popular choice. Each state would be free to adapt these meas¬ 
ures to the necessities of its local political conditions. Such ari 
advisory vote is now had in Nevada and some other states and it 
affords all the requisites of a popular election. In the same manner 
a state legislature could take the advice of the people as to their choice 
for President and Vice President of the United States; then having 
ascertained this choice, the legislature or the Governor authorized by 
law could appoint the Presidential electors with a mandatory instruc¬ 
tion to vote for the person designated by the popular vote. This 


would simplify the operations of the electoral college and yet preserve 
the representation of the States therein as contemplated by the Con¬ 
stitution. 


Impolicy of Amending the Constitution. 

The corruption of political institutions is no cure for bad political 
morals. Popular elections in our municipalities most directly under 
the observation of the people, have been quite as pregnant with fraud 
as the election of senators by legislatures exercising delegated powers. 
Many of the people themselves, have not yet learned to judiciously 
exercise the function of electors, to the exclusion of that partisan 
passion and prejudice which played upon by skillful manipulators, is 
quite as effective an instrument to impair the freedom of elections as 
more obvious means of force or fraud. A partisan plebiscite in Wis¬ 
consin vitiated by the use of money is not less immoral than a legis¬ 
lative election, in Illinois by votes bought with money. 

The heedless agitation for the amendment of the constitution is 
not directed to any wholesome political end. The problems which 
confront the American people may all be solved without a rejection of 
the fundamental work of the federal convention of 1787. These 
problems may be better solved by those who know the nature and 
limitations of the power and political principles to be applied in leg¬ 
islative remedies. 

It would be well for the American people to consider the words of 
Jefferson: 

“We are all republicans, we are federalists. * * * Let us then 

with courage and confidence pursue our own federal and republican 
principles, our attachment to our Union, and representative govern¬ 
ment.” 

“The party called republican is steadily for the support of the 
present Constitution. They obtained at its commencement all the 
amendments they desired.” 

And again the words of Lincoln, Jefferson’s greatest disciple who 
did his full share to perpetuate the Union of the American States and 
the federal and republican principles of the Constitution. In the 
course of an address in the House of Representatives at Washington, 
June 28, 1848, Lincoln said: 

“I wish now. to submit a few remarks on the general proposition 
of amending the Constitution. As a general rule I think we would 
much better let it alone. No slight occasion should tempt us to touch 
it. Better not take the first step which may lead to a habit of altering 
it. Better, rather habituate ourselves to think of it as unalterable. It 
can scarcely be made better than it is. New provisions would intro¬ 
duce new difficulties, and thus create and increase appetite for further 
change. No, sir, let it stand as it is. New hands have never touched 
it. The men who made it have done their work and have passed away. 
Who shall improve on what they did?” 

The Constitution is not to be sustained merely because of venera¬ 
tion for the fathers of the republic but also because of the inherent 
wisdom of their great organic work. It will not add to security of our 
civil institutions to break down the foundation upon which the struc¬ 
ture of the Union has been builded. The energy so assiduously 
directed to a reformation of the fundamental law would better be 
exerted to restore our frequent elections to their proper function for 
the purification of representative government. 


Salt Lake, Utah, March 1, 1913. 


